1. These appeals are against orders in execution. To under-stand the contentions raised in these appeals, it will be convenient to set forth the history of the prior litigation.
2. The zemindar of Bodinaickenur died in 1888 leaving a widow, a daughter and daughter's son (the zemindar of Septur) and undivided co-parcener, a concubine and an illegitimate son by her. The widow at once entered into possession of the zemindari. In 1889 the undivided co-parcener brought a suit to recover the zemindari. The widow resisted the claim on the basis of a will left by the zemindar. That suit was compromised in May, l890. Under the compromise the right of the plaintiff therein to succeed to the zemindari was recognised but as a price for the compromise the widow was allowed to enjoy the zemindari for the rest of her lifetime. In 1902 the illegitimate son filed a suit to recover the zemindari alleging that his mother was a married wife of the late zemindar and puting forward an alternative claim even on the basis of his being illegitimate. He also alleged that the will put forward by the widow was a forgery. In that suit, O.S. No, 31 of 1902, the widow (1st defendant), the daughter (2nd defendant) and the daughter's son (3rd defendant) were all made parties. The 1st defendant pleaded that the plaintiff therein was not entitled to inherit in preference to the other heirs of the zemindar. She also pleaded that the will she put forward was genuine. In para. 15 of the written statement, she referred to the earlier suit by the undivided co-parcener and said: 'The said O.S. No. 16 of 1889 terminated in a compromise by which the said Kandasami Naick withdrew his claim and transferred all his rights in the said properties in favour of this defendant during her lifetime; a decree was passed accordingly.' Thus, she pleaded all possible titles for the purpose of resisting the plaintiff. The suit was dismissed by the Subordinate Judge of Madura. There was an appeal to the High Court. In that appeal a distinction was made for the first time between the zemindari proper and the separate estates acquired by the zemindar out of the income of the zemindari, After calling for a finding, the High Court, while confirming the dismissal of the suit in so far as the zemindari was concerned, held that the plaintiff was entitled to a half share in the separate estate as the illegitimate son of a Sudra and gave a decree for partition of the separate estate. Against this decree the 1st defendant appealed to the Privy Council. During the pendency of the appeal the 1st defendant died and the 3rd defendant who was then a minor represented by the Court of Wards brought himself as the legal representative. The Privy Council affirmed the decree of the High Court. [See Kamulammal v. Visvanathaswami Naicker 71 Ind. Cas. 643 : 46 M. 167 : 17 L.W. 298 : A.I.R. 1923 P.C. 8 : 44 M.L.J. 465 : 32 M.L.T. 48 : 37 C.L.J. 363 : 25 Bom. L.R. 577 : 27 C.W.N. 1021 : 50 I.A. 32 (P.C.). The plaintiff is seeking execution of that decree for partition. One of the items of the separate estate is the outstandings due to the zemindar amounting to Rs. 57,000 odd. The 1st defendant denied that she ever collected the outstandings. The High Court found on evidence that she did collect and the decree given included a half of the amount claimed, Rs. 27,000 and odd. Another item claimed as part of the separate estate consisted of jewels belonging personally to the zemindar. But these were not described separately from the rest of the jewels in the possession of the zemindar, at the time of hie death, all the jewels being described in one schedule, namely, schedule C along with other moveables. But the final decree certainly gives to the plaintiff a half share of such jewels as formed the separate property of the zemindar. Immediately on the Rani's death a box of jewels was taken possession of by the Collector of Madura and continued to be in his custody. The present execution petition was filed in August, 1921, for recovery of the value of half the outstandings with interest and the decree-holder sought to attach the jewels left by the late zemindarni. On 10th March, 1924, a letter was sent to the Collector of Madura purporting to be a prohibitory order in pursuance of the order of attachment. It runs thus: 'The plaintiff having applied under Order XXI, Rule 52 of the Code of Civil Procedure for an attachment of property now in your hands the under-mentioned jewels of the late zemindarni, Kamalu Ammal of Bodinaika-noor, I request that you will hold the said property subject to the further order of this Court etc. Description of jewels: 'The jewels of gold, silver, etc., belonging to Kamalu Ammallate zemindarni of Bodinaika-noor.' It is seen from the above prohibitory order that only the jewels belonging to the zemindarni were sought to be attached. It does not purport to claim that all the jewels in the box, possession of which was taken by the Collector are jewels belonging to the zemindarni, though perhaps the Collector regarded it as such. He made reference to the Court in which he mentioned that part of the jewels were claimed by the zemindar of Saptur as his own as he happened to reside with the zemindarni at the time of her death. The Court replied that only the jewels belonging to the zemindarni were the subject of attachment. This reply did not improve matters. The notice was also issued to the zemindar of Saptur. When the batta amin went to his palace it was said he was absent at Madura and the notice was affixed to the outer door. Whether this affixture was justified or not, there is no doubt that it came to the notice of the zemindar afterwards though we are not told exactly when and the zemindar did not then object to the order of attachment by the Court. The plaintiff subsequently attempted to bring the properties to sale. The present petition is filed by the zemindar of Saptur objecting to the sale of the properties on the ground that the jewels attached did not belong to the zemindarni but formed part of the separate property of the zemindar. Incidentally in this petition he also said he was not served properly with notice of the attachment and that the attachment of the property was irregular and not valid. As the Subordinate Judge remarked that he is not entitled to raise the latter point. in this petition he filed another petition to raise that question. This was on 18th December, 1921 In this petition he conceded that the jewels in the custody of the Collector comprised three separate classes (1) the jewels belonging to the zemindarni, (2) the jewels belonging to separate estate of the late zemindar, (3) other jewels not falling under the above two descriptions but consisting of the regalia of the zemindari and other items. The petitioner concedes that the decree of the High Court and the Privy Council awards to the plaintiff half of the second category, that he is entitled to execute his decree against the first category but not against the defendant's half share in the second category. The undivided coparcener who was the 6th defendant in the suit objected in respect of the third category but there is an order against him and he never appealed. Anyhow the third defendant, the zemindar of Saptur, has no interest in that item. The Subordinate Judge disallowed the objections of the third defendant and dismissed both the petitions. The present appeals are against these orders. Civil Miscellaneous Appeal No. 63 being against the order on the petition objecting to the validity of the attachment and C. M. A. No. 6-1 being against the order on the petition claiming that portin of the jewels are not the assets of the zemindarni. The appellant of course concedes that the plaintiff's decree can be executed against the stridhanam jewels of the zemindarni but his contention is that all the jewels in the box are not such stridhanam jewels and the matter must be enquired into.
3. Mr. Sitaram Rao who appeared for the respondent contended that even assuming that part of the jewels form separate estate of the zemindar, they are liable to be proceeded against in execution as in collecting the outstandings she represented the line of heirs including herself, the daughter and daughter's son of the last zemindar in so far as the separate estate was concerned. He contends that she was sued as a widow, that she defended as widow, that the decree against her was given as a widow represented the inheritance of the zemindar and, therefore, the third defendant's reversionary interest is also liable to be proceeded in execution of the decree as it was for the benefit of all the line of heirs that she defended the suit. He relies on Jugal Ki shore v. Jotendra Mohun Tagore 10 C. 985 : 11 I.A. 65 : 8 Ind. Jur. 455 : 4 P.C.J. 553 (P.C.), Parta narin Singh v. Trilokinath Singh 11 C. 186 : 11 I.A. 197 : 8 Ind. Jur. 697 : 4 Sar. P.C.J. 567 : Raflque & Jackson's P.C. No. 86 (P.C.), Risal Singh v. Balwant Singh 48 Ind. Cas. 553 : 40 A. 593 : 28 C.L.J. 519 : 24 M.L.T. 361 : 9 L.W. 52 : 23 C.W.N. 326 : (1919) M.W.N. 155 : 36 M.L.J. 597 : 21 Bom. L.R. 511 : 45 I.A. 168 (P.C.) and Lalji Sahai Singh v. Karki Jha 2 lnd. Cas. 654 : 14 C.L.J. 90. The decisions in Partabnarain Singh v. Trilokinath Singh 11 C. 186 : 11 I.A. 197 : 8 Ind. Jur. 697 : 4 Sar. P.C.J. 567 : Raflque & Jackson's P.C. No. 86 (P.C.) and Risal Singh v. Balwant Singh 48 Ind. Cas. 553 : 40 A. 593 : 28 C.L.J. 519 : 24 M.L.T. 361 : 9 L.W. 52 : 23 C.W.N. 326 : (1919) M.W.N. 155 : 36 M.L.J. 597 : 21 Bom. L.R. 511 : 45 I.A. 168 (P.C.) show that a widow may represent the reversioners in a litigation and the decree obtained against her may bind the reversioners not only in cases where she was suing or defending on behalf of her husband's estate the dispute being between that estate and another estate, but also where there are rival claimants to her husband's estate. In Risal Singh v. Balwant Singh 48 Ind. Cas. 553 : 40 A. 593 : 28 C.L.J. 519 : 24 M.L.T. 361 : 9 L.W. 52 : 23 C.W.N. 326 : (1919) M.W.N. 155 : 36 M.L.J. 597 : 21 Bom. L.R. 511 : 45 I.A. 168 (P.C.) the rival claimant was an adopted son. In the Case before us the rival claimant is an illegitimate son. In such cases, a decree for mesne profits or for costs may be executed against other widow's estate not the subject of the litigation in the hands of her re-versioners after her death on the ground that her litigation was for the benefit of the whole of the estate she inherited from the husband and passed on to the reversioners. On this principle Mr. Sitarama Rao contends that the decree against the zemindarni of Bodinaikanoor for half the outstanding and half the jewels may be executed against the other half of the separate estate for which he did not obtain a decree and which has now descended to the third defendant after the zemindarni's death, because it is said, she was defending the suit for the benefit of all the heirs who were entitled to the separate estate of the last zemindar. In resisting the illegitimate son's claim she was working not only for the benefit of herself but for that of her daughter and daughter's son. But in the present case what is sought to be executed is the decree for half of the outstandmgs. So far as the jewels are concerned there is no difficulty whatever jewels in the box are found to be separate jewels, it is conceded that the plaintiff is entitled to his half and it is even said that defendant is willing to pay down their price and retain the jewels of the separate estate himself. But the question is whether the decree for outstandings can be executed against the other half shares of such jewels. This depends on not in what capacity the decree of the High Court and the Privy Council was given against the 1st defendant but in what capacity she collected the outstanding. There is no doubt that the decree was given against her as widow, but it is not equally clear in what capacity she claimed and collected the outstandings from the debtors of the zemindar. As early as 1889 she put forward a will of the zemindar. That will make no distinction between zemindari or the separate estate of the zemindar. What estate she claimed under the will as legatee we do not know whether she claimed a widow's estate or a mere life-estate or an absolute estate. We are informed that this question is the subject of another litigation. The oral evidence relating to the collection of the debts is that of plaintiff's 48th witness in which he gives general evidence that the debts were collected by the 1st defendant within two or three years after the zemindar's death. In respect of one debt it was said to be in the year 1890 and in respect of others not even this information was given. It is impossible to say when exactly the debts were collected. It may be on that evidence they were collected in 1890 or 1891. If the collection was after the compromise with the 6th defenant in May, 1890, she was doing so under the right which was vested in her, being transferred to her from the 6th defendant by reason of the compromise. That razinamah is Ex. 38. and is printed at page 231 of the Privy Council book. Under para. 6 it is stated: 'all other Pannai etc. lands, and buildings and moveables which belonged or were in the enjoyment of the deceased Kumaraja Pandiya Avergal and are situate either in the said zemindari or in other places shall be held and enjoyed by the 1st defendant her heirs with all rights and privileges and with the power of alienation by way of gift, mortgage, sale, etc., free from any subsequent claim by the plaintiff and his heirs.' The word 'moveables' includes the outstandings due to the zemindar. If she made the collection of the outstandings after this compromise under the rights given to her under this para. 6, it may be said that without our expressing any final opinion she was collecting them as absolutely entitled to them and not in the claims of a widow's estate and, therefore, as representing her daughter and daughter's son. There is no further material than what is already mentioned to show in what capacity she acted. Unless the facts are very clear we cannot apply the principle established by the decisions cited by Mr. Sitarama Rao to the facts of this particular case. We, therefore, come to the conclusion that the decree of the plaintiff for outstandings cannot be executed against the half share of the jewels forming the separate estate which have now descended to the 3rd defendant. He can execute the decree against all other jewels.
4. This conclusion makes it necessary that an enquiry should be held as to what jewels in the box belong to the separate estate and what jewels fall into other categories. It cannot be said that zemindar of Saptur is estopped from raising the question now. He did not object to the attachment because the attachment sought was only of the jewels belonging to the zemindarni. Not objecting to a prohibitory order of that kind cannot be held to amount to an implied admission that all the jewels in the box belong to the zemindarni nor to an implied decision by the Court to that effect. What the Collector thought has no bearing on the matter. He was then discriminating between Bodinaickanoor and Saptur. Wethere-fore, think that an enquiry is necessary. In C. M. A. No. 64 we call upon the Subordinate Judge to take such evidence as is offered by both sides on the nature of the jewels and submit a finding to this Court within two months after the re-opening of the High Court that is 18th September. In C. M. A. No. 63 the only point raised is that the attachment is invalid. The appellant has nothing to do with the irregularity of the attachment. He did not care to object to it, as the attachment was only of the jewels of the zemindarni, He cannot now attack the validity of the attachment. Civil Miscellaneous Appeal No. 63 is therefore, dismissed with costs.
5. [In compliance with the order contained in the above judgment the Subordinate Judge of Dindigal submitted the finding that items Nos. 1. 2, 3,6, 8,16, 17, 18, 19 to 22, 27 to 30,31, 35, 37, 38, 39, 40, 41, 46, 47, 49, 53, 62, 64, 78, 82, 86 and 91 belonged to the zemindarni and that item No. 7 belonged to the estate]
6. The Subordinate Judge has now returned a finding that item No. 7 only belonged to the estate of the zemindar and that the other items in dispute (besides those conceded in the Court below) belong to the zemindarni
7. The appellants have filed objections to the finding.
8. It has been contented before us that the burden of proof was wrongly thrown on the appellant by the Subordinate Judge. On the other hand, the learned Advocate for the respondent contends that, as the appellant is a reversioner claiming properties as belonging to the last male owner, it is for him to show that they form part of the estate of the last male owner. So far as the latter contention is concerned, I may observe that we are not here dealing with a case of a reversioner claiming against alienees from a widow or a daughter. But in the case before us, the respondent as a decree-holder against the widow' seeks to execute his decree against items she never asserted to be hers but which he claims to be hers. Therefore, there is certainly some burden of proof on the execution creditor but at the same time, the reversioner also should show that they form part of the zemindar's estate. The truth is we have got here a case of two rival claimants to property in the hands of a stake-holder and there is a equal burden upon both. We must decide the case with reference to other considerations.
9. Now, as regards items Nos. 6,19 to 22 and 86, the appellant was not even able to assert that they belonged to the zemindar's separate estate nor did he connect them with any of the items in the 0 schedule
10. With reference to items Nos. 27 to 30 the respondent's witness does not know whether they belong to the zemindarni or not. On the other hand, the appellant's witness stated that they belonged to the zemindar. Though these items were not mentioned in the 0 schedule, we must hold that they are not part of the stridhanam of the zemindarni and are liable to be proceeded against in execution by the respondent.
11. As to the items discussed in para. 7 of the judgement of the Subordinate Judge, we must agree with his conclusion on the ground that they are not mentioned in 0 schedule.
12. Item No. 18 is a jewel set with rubies and item No. 16 is a jewel set with diamonds and rubies. Now item No, 136 of the 0 schedule was a packet of loose rubies and the High Court found that it belonged to the main estate and not to Kamalu Ammal. Even if it is admitted that she was in the habit of purchasing precious stones, one must presume that the old rubies were used for a new jewel, unless the contrary is shown. On this matter, the burden is on the respondent who wants to proceed against the jewels of the zemindarni to displace the possibility of her having used the old rubies. We, therefore, find that item No. 18 and the rubies in item No. 16 belonged to the zemindar's estate.
13. As to item No. 62, the appellant's witness states that they are made out of the diamonds taken from items Nos. 71 and 72 of C schedule. Item No. 71 consisted of two big and four small diamond buttons. Item No. 72 was a watch set with diamonds, pearls and rubies with a chain set with diamonds. The respondent's witness states that a watch chain was given as a present by Kamalu Ammal to her son-in-law at the time of his marriage. His evidence was believed by the Subordinate Judges but, even, accepting his evidence, the diamond buttons and the diamonds in the watch might have been used for making the jewel, Item No. 62. We, therefore, allow this item also in favour of the appellant.
14. The appellant does not press his objections relating to Items Nos. 1,3 and 78 and the finding of the Subordinate Judge is accepted with regard to them.
15. As regards Items Nos. 34 and 35, the appellant's evidence is that they were made partly out of the rubies in Item No. 131 of the C 'schedule and the rubies of another addigai. But the value of Item No. 131 of the 0 schedule was only Rs. 200. We allow, therefore, Items Nos. 34 and 35 in favour of the appellant only to the extent of the rubies worth Rs. 200.
16. The appellant's case is that Items Nos. 43,45 and 4.6 were made from the pearls in Items Nos. 40, 42,124 and 135 in C schedule. Of these, Nos. 40 and 42 were held by the High Court to belong to the zemindarni and the others to the estate. Now, the respondent has not pressed his claim to proceed against Items Nos. 43 and 45 in the Court below. We must, therefore, take that Item No. 46 was made from the pearls in Items Nos. 40 and 42 and, therefore, the finding of the lower Court as regards Items No. 46 is confirmed.
17. As regards Item No. 64, we agree with the Subordinate Judge.
18. As regards the diamonds in Item No. 16, the appellant's witness Connects them with Items Nos. 71 and 72 of the C. schedule. The remarks made above with regard to Item No. 62 apply to this item also. We, therefore, find this item in favour of the appellant.
19. The result is that in addition to Item No. 7 found by the Subordinate Judge to belong to the zemindar and Items Nos. 11,33, 43,45. 90, 109, 119 and 122 conceded by the respondent in the lower Court, we now find Items Nos. 16,18, 27 to 30, 62 and Rs. 200 worth of rubies in Nos. 34 and 35 in favour of the appellant. The respondent will be entitled to proceed in execution of his decree against all the items found to belong to the zemindar and only a half share in the above items but not against the other-half, which belongs to the appellant. Each party will bear his own costs throughout.
20. I agree and have nothing to add.